In my first blog post discussing the U.S. Commission on Civil Rights’ new report on conflicts between nondiscrimination norms and religious liberty, I briefly discussed the roots of this conflict. I also noted that the Commission’s progressive majority (the Commission has a total of eight members, six of whom are progressives and two of whom are conservatives) have resoundingly resolved this conflict in favor of nondiscrimination. One finding in particular shades over from nondiscrimination into hostility toward traditional religious belief:
schools must be allowed to insist on inclusive values; 2) throughout history, religious doctrines accepted at one time later become viewed as discriminatory, with religions changing accordingly; 3) without exemptions, groups would not use the pretext of religious doctrines to discriminate; 4) a doctrine that distinguishes between beliefs (which should be protected) and conduct (which should conform to the law) is fairer and easier to apply; 5) third parties, such as employees, should not be forced to live under the religious doctrines of their employers [unless the employer is allowed to impose such constraints by virtue of the ministerial exception]; 6) a basic [civil] right as important as the freedom to marry should not be subject to religious beliefs; and 7) even a widely accepted doctrine such as the ministerial exemption should be subject to review as to whether church employees have religious duties.
The Commission then specifically singles out and elaborates upon the second point:
religious doctrines that were widely accepted at one time came to be deemed highly discriminatory, such as slavery, homosexuality bans, and unequal treatment of women, and that what is considered within the purview of religious autonomy at one time would likely change.
It is interesting that the Commission majority considers it a fait accompli that religious prohibitions on homosexual behavior (my best guess as to what “homosexuality bans” means) are now deemed “highly discriminatory.” Religious individuals and institutions should be deeply concerned that a federal agency charged with monitoring and protecting civil rights is officially predicting that certain religious beliefs will have to be changed and that religious autonomy will be curtailed. It is obvious that the Commission majority, like the rest of the progressive movement, hopes to isolate and stigmatize churches and religious institutions that adhere to traditional Christian teaching regarding homosexual behavior.
Those churches, colleges, and universities that do not “get their minds right” and jettison their traditional moral teachings are likely to soon find themselves facing serious challenges. Gordon College, an evangelical liberal arts college in Massachusetts, was prohibited from placing student teachers in local public schools because it required its students and staff to abstain from sexual relations outside of man-woman marriage. Gordon College even found its accreditation threatened. Perhaps the most frightening aspect of this anti-Gordon College effort was that the impetus was that the President of the college signed “in his personal capacity, a letter asking President Obama to include a narrow religious-liberties exemption in his executive order banning sexual-orientation discrimination by federal contractors.” Merely speaking up for the rights of his own religious community was enough to cause a firestorm.
Gordon College eventually triumphed. But other religiously-affiliated organizations have not been as fortunate. As I noted in my statement in the Commission report, Catholic adoption agencies have already been forced to close or curtail their operations because Catholic teaching does not permit them to place children with same-sex couples. This does not in any way prohibit a same-sex couple from using another adoption agency, but that was insufficient to satisfy the political authorities. Bishop Thomas Paprocki of Springfield, Illinois wrote a public comment to the Commission that is worth quoting at length.
For forty years, Catholic Charities in Illinois had partnered with the Illinois Department of Children & Family Services (DCFS) in providing foster care and adoption services for the state's abused and neglected children. Both parties agreed that it was a highly successful partnership, effectively providing care and permanent loving homes for literally tens of thousands of these vulnerable children. The partnership saved taxpayers millions of dollars, since Catholic Charities provided the programs much cheaper than if the state itself provided the services. In addition, the partnership also enabled the state to capture tens of millions more in federal reimbursement because of the outstanding success Catholic Charities (and other private agencies) achieved in effectively providing and meeting outcome benchmarks.
The state publically pronounced that the partnership in Illinois between DCFS and private agencies should serve as a national model to be replicated across the country as the best way to manage the tremendous difficulties of a statewide child welfare system. Catholic Charities was one of the largest private agencies in the state anchoring this system by serving thousands of children and families in a statewide collaborative network stretching over 100 counties in Illinois. Catholic Charities and DCFS worked closely and effectively over the years to ensure that the best interest of children was always the primary motivation for the services and decisions impacting the lives of these much damaged children. …
And then something changed...
The controversy between Catholic Charities and the State of Illinois began with the passage of the Religious Freedom Protection and Civil Union Act in December, 2010. At issue was whether or not religious freedom protection actually existed in the new law and that it applied to Catholic Charities foster care and adoption programs. During deliberations in the Illinois General Assembly, discussions were held regarding the impact of the civil union's bill on faith-based organizations. The legislative intent of the law was clearly defined in the Senate debate, when it was definitively affirmed by the bill's sponsor, Senator David Koehler, that nothing in the new civil union's law would regulate or interfere with "institutions of faith" operating "various agencies providing social services, retreats, religious camps, homeless shelters, senior service centers, and adoption agencies, hospitals." With this assurance, the bill narrowly passed through the Senate.
However, this intended religious protection was completely dismissed by the state after the bill was signed into law by Governor Patrick Quinn. Almost immediately, the state accused Catholic Charities of being in violation of the new law because of our opposition to the placement of children in the homes of unmarried couples who are living together, regardless of their sexual orientation. We were told that if we did not immediately expand our religious definition of marriage to include civil union couples, the state would dismantle the entire Catholic Charities foster care and adoption network across Illinois, negatively impacting thousands of innocent Catholic Charities foster care staff, foster parents and foster children. So despite being assured that nothing in the new law would regulate or interfere with Catholic Charities, the governor's administration immediately threatened to put us out of business. Every attempt we made to explain our position and seek a compromise with the state was immediately dismissed and returned with an ultimatum - surrender your religious beliefs in this matter or we will eradicate your programs.
Catholic Charities’ adoption and foster care system was eradicated. The fact that this occurred in a context where the religious organization involved believed that religious liberty protections had been negotiated during the legislative process, only to find those protections ignored once the law was passed, should serve as a warning to all religious believers. Once the Left has what it wants, it will act in bad faith. Catholic Charities in Illinois is not an isolated case. Catholic Charities in Boston and in Washington, D.C. also had to stop providing adoption and foster care services because their faith does not allow them to place children with same-sex couples.
Religiously-affiliated colleges and universities may soon find themselves in a similarly difficult position. During oral arguments in the Obergefell case, Justice Alito asked then-Solicitor General Verrilli if a religious college or university might lose its tax-exempt status if it opposed same-sex marriage, much as Bob Jones University lost its tax-exempt status for prohibiting interracial relationships between its students. The Solicitor General acknowledged that “it’s certainly going to be an issue.” Although the IRS has said that Obergefell will not affect the tax-exempt status of organizations, that could certainly change. And some commentators would like to end tax exemptions for churches, religious organizations, and universities altogether, though not for hospitals, “an indispensable, and noncontroversial, public good.” (Unlike churches, apparently.)
Even if the federal government does not immediately move against religiously-affiliated institutions, the states may. The California Senate recently considered a bill, SB 1146, that would have required religiously-affiliated colleges and universities to provide the same benefits to married same-sex student couples as married opposite-sex student couples (such as on-campus housing) if the colleges and universities accept students who receive state financial aid known as Cal Grants. The college and university would also have been required to treat students in accordance with their gender identity, not their birth sex. The colleges and universities would have been required to comply with these requirements even if they conflicted with the moral tenets of the school’s religious affiliation, and even though any LGBT student voluntarily chose to attend this school. As Andrew T. Walker and Darren Patrick Guerrera note, the bill also would have prohibited students from using Cal Grants to attend a university that decided to adhere to its faith’s moral code. This would have harmed students in majority-minority California, many of whom want to attend a religiously-affiliated institution. After a public outcry, the bill was amended to remove the provisions that most threatened religious liberty. However, if a school receives a religious exemption from the requirements of Title IX, the bill requires it to prominently indicate as much. Furthermore, each quarter the school must self-report to the state “that includes the following: (a) a detailed reason for each student suspension or expulsion that occurred during the preceding quarter, including an explanation of the policy the student violated and whether that policy is authorized under the exemption. (b) Whether the student was a Cal Grant recipient."
Although the immediate danger to the freedom of California’s religiously-affiliated colleges and universities has been averted, it is concerning that the state will apparently be keeping records of student suspensions and expulsions at those institutions. This will potentially lay the groundwork for taking additional actions against these institutions in future. Anyone who cares about civil society should be concerned about this, as it potentially affects the institutions’ willingness and ability to govern their own communities. If nothing else, it may have a chilling effect – and such chilling effect is likely intended. If you believe in the importance of little platoons, you should be concerned that many influential people would like the government to impose a one-size-fits-all system on private organizations.
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Peter N. Kirsanow is a partner at the firm of Benesch, Friedlander, Coplan & Aronoff, a former member of the National Labor Relations Board, and a member of the U.S. Commission on Civil Rights. He lives in Cleveland. The opinions expressed are his alone and not those of the U.S. Commission on Civil Rights.